Libraries may digitize books without permission, EU top court rules

European libraries may digitize books and make them available at electronic reading points without first gaining consent of the copyright holder, the highest European Union court ruled Thursday.

The Court of Justice of the European Union (CJEU) ruled in a case in which the Technical University of Darmstadt digitized a book published by German publishing house Eugen Ulmer in order to make it available at its electronic reading posts, but refused to license the publisher's electronic textbooks.

Eugen Ulmer sought to prevent the university from digitizing the book and also wanted to prevent users of the library from printing out the book or copying it to a USB stick for use outside the library, the CJEU said in a news release.

Under the EU Copyright Directive, authors have the exclusive right to authorize or prohibit the reproduction and communication of their works, the CJEU said. However, the directive also allows for exceptions or limitations to that right, it said.

"This option exists notably for publically accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals," it added.

The directive does not prevent EU member states from granting libraries the right to digitize the books from their collections, if it becomes necessary for the purpose of research or private study, to make those works available to individuals through dedicated terminals, the CJEU ruled.

"The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitize the works in question," the court said.

Even if the rights holder offers a library the possibility of licensing his works on appropriate terms, the library can use the exception to publish works on electronic terminals, the court ruled. "Otherwise, the library could not realize its core mission or promote the public interest in promoting research and private study," it said.

However, libraries cannot permit visitors to use the terminals to print out the works or store them on a USB stick, the CJEU said. By doing so, the visitor reproduces the work by making a new copy. This copying is not covered by the exception, particularly since the copies are made by individuals and not by the library itself, it said.

The library could however permit the users to print or store the works on a USB stick if fair compensation is paid to the rights holder, the CJEU said.

The CJEU's ruling followed the advice given to the court in a formal opinion in June by Advocate General Niilo Jääskinen. He said that libraries should be allowed to digitize books without consent, but copying an electronic book to a USB stick or printing it should be illegal.

The case will now go back to the Federal Court of Justice of Germany that had asked the CJEU to clarify the scope of the copyright directive. The CJEU does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the CJEU's decision, which is binding on other national courts or tribunals before which a similar issue is raised.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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